Rounding Up the Brown v. Plata Commentary

Here’s a (non-comprehensive) roundup of coverage and commentary on yesterday’s Brown v. Plata decision. Please also visit the California Correctional Crisis blog — they’re the experts and they call the opinion “a mixed blessing”: given his framing of the issue, “Justice Kennedy sets the stage for the state to avoid early releases by recurring to damaging, malignant techniques, which will only increase mass incarceration in the long run.” Doug Berman’s Sentencing Law & Policy blog also has several helpful posts on the decision, and will surely have more to come.

Lyle Denniston of SCOTUSblog on how the majority and dissenting opinions seem to have different visions of what the majority opinion actually entails.

The Los Angeles Times explains how Gov. Jerry Brown’s plan, which would transfer low-level inmates down to county jail, could achieve the required population reduction without “releasing” anyone from custody. More on that plan from the SF Chronicle‘s Bob Egelko. (But, the plan would cost an increase in taxes, and if there’s one thing California voters love, it’s refusing to pay higher taxes even while demanding super-expensive criminal-justice policies.)

Press release from the Prison Law Office, the Berkeley-based prisoners’ rights law firm that’s been litigating this case for 20 years. A handy nutshell summary plus links to a wealth of documents from throughout the litigation.

Forbes blogger Ben Kerschberg has a well-done round-up of quotes and facts on the situation in California’s prisons.

The always-interesting Dahlia Lithwick on the Court’s inclusion of photographs in the opinion.

Gov. Jerry Brown: “As we work to carry out the court’s ruling, I will take all steps necessary to protect public safety.”

CDCR Secretary Matt Cate on reforms already under way to shift the lowest-level offenders out of state prison down to county jail: “What we do best is focus on high-risk, high-level offenders. That’s always been the traditional role of prisons, you know. The governor was really surprised to learn that California had 47,000 offenders that went to prison last year that served 90 days or less.”

SF Chronicle: “The Supreme Court’s ruling to end California’s shameful and dangerous prison overcrowding demands an answer from Sacramento, not more rhetoric and legal dodges.”

San Jose Mercury News: “The governor and Legislature need to stop whining and begin making changes that meet civilized standards and will make Californians safer.”

Los Angeles Times: “the truth is that experts have been suggesting responsible ways to ease prison overcrowding for years. One way is to create an independent panel to revise the state’s haphazard sentencing guidelines, which all too often result in excessive terms that worsen overcrowding.”

And lastly, my take: Ultimately, the SCOTUS decision doesn’t change as much as it might seem. The state has flexibility to achieve the required population reduction in its existing prisons through a variety of means, which could include transferring more prisoners to out-of-state prisons, building new prisons (though that’s unlikely given California’s budget crisis), shifting low-level offenders with short sentences to county jails per Gov. Brown’s proposal (AB 109), continuing to tinker with its dysfunctional parole system, expanding the use of good-time credits, etc. — certainly no one is calling for the indiscriminate release of 40,000 prisoners all at once. Just as they’ve been doing for years now, the legislature and administration in Sacramento will continue struggling to reign in California’s out-of-control prison system, even as California voters continue to demand both “tough-on-crime” policies and low taxes. Perhaps the SCOTUS imprimatur on the lower-court release order will add some impetus to reform efforts, but something would have had to change regardless of what SCOTUS decided; no one affiliated with the California Department of Corrections denies that the system has serious problems. California was never claiming that its prisons weren’t grossly overcrowded. The issue before the Supreme Court was the appropriate remedy, not the existence of a constitutional violation.

Nor is the SCOTUS decision in this case likely to inspire copycat litigation in other states. California’s prison system is exceptional. There are other states that have overcrowding problems (Alabama, for one) but none on the scale of California. There are other states that have prison health care problems but in no state are those problems as systemic and intractable as they have been in California. California’s rate of incarceration is actually average by U.S. standards (that’s still high by world standards, of course); Southern states incarcerate their populations at much higher rates. It’s just that California’s combination of a high absolute incarcerated population, a dysfunctional legislature, totally weird tax politics, and an unusually powerful prison guards’ lobby, among other factors, have made for uniquely awful, and uniquely intractably awful, prison conditions.

Putting on my “legal historian” hat, though, there’s a lot to say about the rhetoric of the opinion. Justice Kennedy’s majority opinion makes a lot of use of the discourse of “civilization” that’s worth unpacking. The hysterical Scalia/Thomas dissent is filled with weird imagery about “criminals” being “fine physical specimens,” and is also suffused with appeals to the Enlightenment tradition of facticity and expertise, which itself has been intertwined from its origins with the Anglo-American legal system; I would love to read a historian of science’s take on this opinion. I’m hoping that over the summer, I’ll have some time to research and write in more depth about the discursive traditions at work in these texts and what they might suggest about the Court’s understandings of criminality, penology, punishment, the state, etc. more broadly.

This litigation has spanned several gubernatorial administrations, taking on each governor’s name in turn as the nominal defendant, in accordance with the convention in litigation against the state. (States have sovereign immunity, so lawsuits are typically filed against state officials, except in certain conditions where the state has abrogated its immunity.) In a way, though, it’s fitting that the decision will go down in history books as Brown v. Plata, since many of California’s most counterproductive criminal-justice policies were set in motion during the first Jerry Brown administration, it was Jerry Brown who appealed the order to SCOTUS as California’s attorney general, and now it will fall to the second Jerry Brown administration to figure out how to comply with the order.